Citation Nr: 9806433
Decision Date: 03/04/98 Archive Date: 03/20/98
DOCKET NO. 96-34 638 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
ISSUES
1. Entitlement to service connection for chronic bilateral
wrist disability.
2. Entitlement to service connection for myopic astigmatism,
claimed as decreased visual acuity.
3. Entitlement to service connection for tinnitus.
4. Entitlement to an increased disability evaluation for
left knee, ligament and meniscal tear, currently evaluated as
10 percent disabling.
5. Entitlement to an increased (compensable) disability
evaluation for right knee, frayed lateral meniscus.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Jeffers
INTRODUCTION
The veteran has unverified active duty service from April
1992 to September 1995.
This appeal arose from a February 1996 rating decision of the
St. Petersburg, Florida, Department of Veterans Affairs (VA),
Regional Office (RO), which, in pertinent part, granted
service connection and assigned noncompensable ratings for
left and right knee disabilities; the RO also denied service
connection for chronic acne and acne scarring, low back pain
and tinnitus. The veteran filed a timely notice of
disagreement (NOD) as to these issues, and was issued a
statement of the case (SOC) in April 1996. In January 1997,
the veteran then offered his contentions at a hearing before
a Hearing Officer (HO) at the VARO. Later that month, the
HO: (1) granted an increased rating to 10 percent for the
left knee disability; (2) denied an increased rating for the
right knee disability; (3) granted service connection and
assigned separate 10 percent disability rating for cystic
acne and low back strain; and (4) confirmed and continued the
denial of the veteran’s claims for service connection for
chronic bilateral wrist disability, myopic astigmatism and
tinnitus. The veteran was issued a supplemental statement of
the case (SSOC) as to his claims for increased rating for his
left and right knee disabilities and service connection for
chronic bilateral wrist disability, myopic astigmatism and
tinnitus.
In March 1997, the veteran, in essence, sought clarification
as to why the January 1997 SSOC did not include his claims
for chronic acne and acne scarring, as well as low back
disability. By letter to the veteran, with copy to his
accredited representative, dated in April 1997, the RO
explained that the issues of service connection for acne and
low back strain had been removed from appellate status, since
service connection was granted by the HO. It was further
noted that if there was dissatisfaction with the evaluations
assigned for these conditions, the veteran should notify the
RO within 30 days so that the issues of evaluations are added
to his appeal. To date, the veteran has not responded.
The Board notes that the United Stated Court of Appeals for
the Federal Circuit has recently held that where service
connection has been granted after an appeal has been
initiated, it is manifest that the appellant’s NOD concerned
the “logically up-stream element of service connectedness,”
and did not “concern the logically down-stream element of
compensation level.” Grantham v. Brown, 114 F.3d 1156
(1997). In the instant case, the veteran’s initial notice of
disagreement as to the issues of entitlement to service
connection for acne and low back strain does not convey
appellate jurisdiction over the subsequent issues of
entitlement to increased ratings for these disabilities. As
such the propriety of the compensation levels for acne and
low back strain will not be discussed herein.
REMAND
VA has a duty to assist the veteran in the development of all
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1997). This includes the duty
to obtain VA examinations which provide an adequate basis
upon which to determine entitlement to the benefit sought, as
well as the duty to obtain all relevant treatment records
referred to by the veteran. Littke v. Derwinski, 1 Vet. App.
90 (1991). Examinations must also address the rating
criteria in relation to the veteran’s symptoms. Johnson v.
Brown, 9 Vet. App. 7 (1996). Consequently, examinations by
specialists are recommended in those cases which present a
complicated disability picture. Hyder v. Derwinski, 1 Vet.
App. 221 (1991). There is also a duty to obtain all relevant
service records. Jolley v. Derwinski, 1 Vet. App. 37 (1991).
During the course of his January 1997, the veteran testified
that he believed his tinnitus was due to acoustic trauma in
service; this included, firing an M-16 during basic training,
logging 40 hours of flight time in a single engine airplane
and riding a motorcycle. The veteran stated that he began to
notice ringing in his ears in 1993, and that he had reported
the same to doctors on three occasions, to include at the
time of his separation. An evidentiary review of the record
reveals that a copy of the veteran’s separation examination
has not been associated with his claims folder. Moreover, no
effort has been made to verify dates of service or to ensure
that the veteran’s entire service medical record (SMR) has
been associated with his claims folder. In view of the
veteran’s sworn testimony, the Board finds that additional
assistance is necessary.
The Board further notes that the RO transferred this appeal
to the Board on July 22, 1997. On November 7, 1997, the
Board received 29 pages of additional medical evidence from
the veteran. Under the applicable regulations, an appellant
and his or her accredited representative must submit
additional evidence within 90 days following notification of
certification and transfer of records to the Board. See
38 C.F.R. § 20.1304(a) (1997) (emphasis added). In the
instant case, a copy of the letter notifying the veteran of
certification of his appeal to the Board has not been
associated with his claims folder. In the absence of such,
the Board finds that reasonable doubt must be accorded in the
veteran’s favor, and the additional evidence must be
considered to have been submitted in a timely fashion. See
38 U.S.C.A. § 5107(a) (West 1991). Accordingly, it has been
accepted by the Board pursuant to 38 C.F.R. § 19.37(b)
(1997).
Under 38 C.F.R. § 20.1304(c) (1997), any pertinent evidence
which is submitted by an appellant which is accepted by the
Board must be referred to the agency of original jurisdiction
for review and preparation of an SSOC unless that procedural
right is waived by the appellant or unless the Board
determines that the benefit to which the evidence relates may
be allowed on appeal without such referral. In view of the
fact that neither the veteran nor his representative waived
initial RO consideration of this evidence pursuant to 38
C.F.R. § 20.1304(c) (1997), and since this records appear to
be relevant to the veteran’s remaining increased rating
claims and claims of entitlement to service connection for
chronic bilateral wrist disability and myopic astigmatism, it
is found that remand to the agency of original jurisdiction
for initial review, in lieu of a referral, is warranted. The
Board reminds the RO that, in order to ensure full compliance
with due process requirements, it should re-adjudicate these
claims with consideration of all the evidence of record, new
and old, so as to prevent prejudice to the appellant.
Bernard v. Brown, 4 Vet. App. 384 (1993).
Under the circumstances of this case, additional development
is necessary, and this case is REMANDED to the RO for the
following:
1. The RO should then seek certification
of the veteran’s dates and
classifications of service as claimed by
him. The RO should also contact the
National Personnel Records Center, St.
Louis, Missouri, and request that they
conduct a search for any additional
service medical records pertaining to the
veteran, to include his separation
examination report. These additional
records, if any, must then be associated
with the veteran’s claims folder. This
additional development is required so
that VA may assist the veteran in
ensuring that his complete record is
considered.
2. After the above actions have been
completed, the RO must then re-adjudicate
the veteran’s increased rating and
service connection claims. The RO’s
decision must discuss these claims with
consideration of all the evidence of
record, new and old. Bernard, supra. If
any of the determinations remain
unfavorable to the veteran in any way, he
and his accredited representative should
be furnished a supplemental statement of
the case in accordance with 38 U.S.C.A.
§ 7105 (West 1991), which includes a
summary of additional evidence submitted,
and any additional applicable laws and
regulations. This document should
include detailed reasons and bases for
the decisions reached. The veteran
should be afforded the opportunity to
respond thereto. A copy of the letter
notifying the veteran of recertification
of his appeal to the Board must be
associated with the claims folder.
While this case is in remand status, the veteran and his
accredited representative are free to submit additional
evidence and argument on the appealed issues. Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992).
Thereafter, the case should then be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND the Board intimates no opinion, either factual or
legal, as to the ultimate determination warranted in this
case. The purpose of the REMAND is to further develop the
record. No action is required of the veteran until he
receives further notice.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
A. BRYANT
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -